Findings Of Fact 1. The Administrative Law Judge's Findings of Fact are hereby approved and adopted and incorporated herein by reference. 2. There is clear and convincing evidence to support the Administrative Law Judge's Findings of Fact.
Conclusions THIS MATTER came before the Construction Industry Licensing Board (hereinafter referred to as the “Board”) pursuant to Section 120.57(1)(k), F.S., on November 9, 2000, in Palm Beach Gardens, Florida, for consideration of the Recommended Order issued by the Administrative Law Judge in the above styled cases, Petitioner's Exceptions to the Recommended Order, and Petitioner’s Motion for Entry of Order of Restitution (copies of which are attached hereto and incorporated herein by reference). The Petitioner was represented by John J. Matthews, Esq. The Respondent was not present and he was not represented by counsel at the Board meeting. Upon consideration of the Administrative Law Judge’s Recommended Order, the Exceptions filed thereto, the Motion for Entry of Order of Restitution, the arguments of the parties and after a review of the complete record in this matter, the Board makes the following findings:
The Issue At issue in this proceeding is whether Respondent committed the offenses set forth in the Amended Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact The licensee At all times material hereto, Respondent, Jill Sousa Barker, was licensed by Petitioner, Department of Insurance (Department), as a general lines agent. Such licensure dates to May 10, 1993, and, but for the pending action, Respondent has suffered no other complaint or disciplinary action. The violations On February 11, 1997, an Information was filed in the Circuit Court, Twentieth Judicial Circuit, Lee County, Florida, Case No. 97-0058CF, charging Respondent with two counts of trafficking in cocaine (28 grams or more), contrary to Section 893.135(1)(b), Florida Statutes, and one count of sale or delivery of cocaine, contrary to Section 893.13(1)(a), Florida Statutes. Specifically, the Information alleged that: Count 1 [Respondent] did unlawfully and knowingly sell, manufacture, or deliver a controlled substance, to-wit: 28 grams or more of cocaine or of any mixture containing cocaine, on or about November 7, 1996 Count 2 [Respondent] did unlawfully and knowingly have in her actual or constructive possession, a controlled substance, to-wit: 28 grams or more of cocaine or of any mixture containing cocaine, on or about January 8, 1997 Count 3 [Respondent] did unlawfully sell or deliver a controlled substance, to-wit: cocaine, on or about December 18, 1996 The offenses alleged in Counts 1 and 2 constituted the commission of a felony of the first degree, and the offense alleged in Count 3 constituted the commission of a felony of the second degree. On September 3, 1997, Respondent entered a plea of nolo contendere to Count 3, as charged, and a plea of nolo contendere to the lesser included offense (Counts 1 and 2) of sale and delivery of cocaine (contrary to Section 893.13(1)(a), Florida Statutes), a second degree felony.1 The court entered an order withholding adjudication of guilt on each count, placed Respondent on probation for a period of four years under the supervision of the Department of Corrections (with early termination after two years if in compliance with all terms and conditions imposed), and assessed a fine and costs totaling $561. Respondent successfully completed her probation within one year, and was granted early termination by the court on June 15, 1998. At no time did Respondent inform the Department in writing of having pled nolo contendere to the aforesaid felonies.2 Aggravating and mitigating factors Here, the seriousness of Respondent's criminal acts cannot be gainsaid, nor may they be casually dismissed (as counsel suggests in Respondent's Proposed Recommended Order at page 2) as "part of a sting operation and as such . . . a 'victimless' act." Rather, Respondent acted as a middleman on three occasions, purchased cocaine (up to one ounce) for a dealer (a "person involved in the regular purchase and sale of . . . cocaine") who she believed was otherwise unable to acquire the product, and for which service she was paid a fee ($300 to $500 for the one ounce transaction). That the cocaine was not sold or further distributed, since the dealer was (unbeknownst to Respondent) operating under cover as an informant for the police department, does not render the crime less offensive. Notwithstanding, Respondent has suffered and paid a criminal penalty for her conduct and has demonstrated, based on objective evidence of right conduct, that she is truly remorseful for her actions and that she is worthy of holding a position of trust and confidence. Consequently, although suspension may be mandatory for a violation of Subsection 626.611(14), Florida Statutes, as discussed infra, it will serve no useful purpose. Therefore, any suspension should be de minimus. In reaching the foregoing conclusion, it is observed that, while serious, the isolated events which gave rise to the criminal charges filed against Respondent do not fairly reflect her character. Rather, history reveals that Respondent, age 34 at the time of hearing (date of birth September 17, 1964), has been gainfully employed (at various times, in various capacities) in the insurance industry since age 18, and that she suffered a brief, abusive marriage in the late 1980s, which resulted in the birth of a son, Trent. When Trent was 10 months of age, Respondent left her abusive husband, and moved (from Miami, Florida) to North Carolina to reside with her sister. There, Respondent successfully gained licensure as a property and casualty agent, as well as a life and health agent, and was employed by State Farm. Respondent was then, and continues to be, the primary support for herself and her son, and she enjoys little or no assistance from her former husband. Respondent remained in North Carolina approximately two years, and then returned to Miami, Florida, where she was employed by the Simons and Rose Insurance Agency. Following Hurricane Andrew (August 24, 1992), and the loss of all her possessions, she moved to Fort Meyers, Florida, to reside with her brother. There, Respondent successfully completed the 240-hour course and examination to qualify for licensure in Florida, and on May 10, 1993, was licensed as a general lines agent. Following licensure, Respondent was employed by AAA Insurance for two and one-half years, and thereafter by Tim Shaw Insurance Group, Inc. Respondent was, and continues to be, a model employee, a heavy producer, and is highly regarded among those who know of her. Apart from her continued employment, and support and participation in her son's activities (school, karate, hockey, baseball, and Cub Scouts), Respondent has, since the incidents in question, also committed to regular attendance at Lighthouse Baptist Church. There she has also taught vacation bible school, and has sat as a member of the building committee, as well as the finance committee. Moreover, Respondent has continued to attend night school at Edison Community College, and expects to receive an associate degree (A.S.) in computer programming on December 10, 1999. In all, Respondent has evidenced admirable traits, including resilience, tenacity, and character, which should not be overlooked or ignored because of the isolated incident in question. Given those traits, as well as her evident remorse, there is no reason to believe Respondent would engage in any further misconduct. Moreover, Respondent is painfully aware that, absent licensure, she would lose the means to support her family, and would most likely lose her home and the opportunity to complete her college program.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered which finds the Respondent guilty of violating the provisions of Subsections 626.611(14) and 626.621(8), Florida Statutes, as alleged in Count I of the Amended Administrative Complaint, and guilty of violating the provisions of Subsection 626.621(11), Florida Statutes, as alleged in Count II of the Amended Administrative Complaint. All charges that Respondent's conduct also violated the provisions of Subsections 626.611(1), (7), or (13), and 626.621(2), Florida Statutes, should be dismissed. It is further RECOMMENDED that, as a penalty for such violations, Respondent's license be suspended for one day, followed by a one-year term of probation. DONE AND ENTERED this 9th day of September, 1999, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 1999.
Findings Of Fact By Administrative Complaint filed May 28, 1986, Petitioner, Department of Insurance and Treasurer (Department) charged that Respondent, Theodore Riley (Riley), while employed as an adjuster by United States Fidelity and Guaranty Group, (USF&G), did wrongfully obtain the sum of $400 from a workmens compensation claimant to assure that USF&G would not contest the claim (Count I). The complaint further alleged that on September 16, 1985, Riley entered a plea of nolo contendere to an information charging a violation of Section 812.014, Florida Statutes, a felony of the second degree and a crime involving moral turpitude, and that the court withheld adjudication and placed Riley on 18 months probation (Count II). The Department concluded that such conduct demonstrated, inter alia, a lack of fitness or trustworthiness to engage in the business of insurance; fraudulent or dishonest practices in the conduct of business under the license or permit; and, a plea of nolo contendere to a felony involving moral turpitude. Section 626.611(7),(9) and (14), Florida Statutes. At hearing, Riley entered a plea of no contest to Count II of the Administrative Complaint in exchange for the Department's dismissal of Count I of the Administrative Complaint and the Department's agreement that the penalty imposed would be limited to a suspension of his eligibility for licensure for a period of two (2) years. While not conditioning his agreement to a two year suspension, Riley did request that the Department consider crediting the time he has been on probation against the two year suspension. The evidence shows that Riley was arrested and charged with the subject offense in March 1985, that he entered a plea of nolo contendere, that adjudication of guilt was withheld, and that he was placed on probation for 18 months commencing September 16, 1985. As a special condition of probation, Riley was ordered not to apply for an adjuster's license during the term of his probationary period. Consistent with the terms of his probation, Riley has not renewed his adjusters' license. The Department's records reflect that Riley's license was last due for renewal, but not renewed, on April 1, 1985.
Findings Of Fact 12. The factual allegations contained in the Order of Penalty Assessment issued on February 1, 2010, the Amended Order of Penalty Assessment issued on March 18, 2010, the 2nd Amended Order of Penalty Assessment issued on September 28, 2010, and the 3rd Amended Order of Penalty Assessment issued on December 28, 2010, attached as “Exhibit A”, “Exhibit B”, “Exhibit D“, and “Exhibit F”, respectively, and fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Jeff Atwater, Chief Financial Officer of the State of Florida, or his designee, having considered the record in this case, including the request for administrative hearing received from Wine Warehouse of St. Petersburg, Inc., the Order of Penalty Assessment, the Amended Order of Penalty Assessment, the 2nd Amended Order of Penalty Assessment, and the 3rd Amended Order of Penalty Assessment, and being otherwise fully advised in the premises, hereby finds that: 1. On February 1, 2010, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”), issued an Order of Penalty Assessment in Division of Workers’ Compensation Case No. 09-360-D3-OPA to Wine Warehouse of St. Petersburg, Inc. The Order of Penalty Assessment assessed a total penalty of $26,455.55 against Wine Warehouse of St. Petersburg, Inc. for its failure to secure workers’ compensation for its employees as required by Chapter 440, Florida Statutes. The Order of Penalty Assessment included a Notice of Rights wherein Wine Warehouse of St. Petersburg, Inc. was advised that any request for an administrative proceeding to challenge or contest the Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28-106.2015, Florida Administrative Code. 2. On February 4, 2010, the Order of Penalty Assessment was served on Wine Warehouse of St. Petersburg, Inc. by certified mail. A copy of the Order of Penalty Assessment is attached hereto as “Exhibit A” and incorporated herein by reference. 3. On March 18, 2010, the Department issued an Amended Order of Penalty Assessment to Wine Warehouse of St. Petersburg, Inc. The Amended Order of Penalty Assessment assessed a total penalty of $12,368.81 against Wine Warehouse of St. Petersburg, Inc. The Amended Order of Penalty Assessment included a Notice of Rights wherein Wine Warehouse of St. Petersburg, Inc. was advised that any request for an administrative proceeding to challenge or contest the Amended Order of Penalty Assessment must be filed within twenty- one (21) days of receipt of the Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28-106.2015, Florida Administrative Code. 4. On March 24, 2010, the Amended Order of Penalty Assessment was served on Wine Warehouse of St. Petersburg, Inc. by certified mail. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. On April 14, 2010, Wine Warehouse of St. Petersburg, Inc. filed a request for an administrative hearing (“Petition”) with the Department, which was forwarded to the Division of Administrative Hearings and assigned DOAH Case No. 10-6375. A copy of the Petition is attached hereto as “Exhibit C”. 6. On September 28, 2010, the Department issued a 2nd Amended Order of Penalty Assessment to Wine Warehouse of St. Petersburg, Inc. The 2nd Amended Order of Penalty Assessment assessed a total penalty of $10,169.99 against Wine Warehouse of St. Petersburg, Inc. 7. On September 29, 2010, the Department filed a Motion to Amend Order of Penalty Assessment with the attached 2nd Amended Order of Penalty Assessment with the Division of Administrative Hearings in DOAH Case No. 10-6375. On December 23, 2010, Administrative Law Judge B. J. Staros entered an Order granting the Department’s Motion to Amend. A copy of the 2nd Amended Order of Penalty Assessment is attached hereto as “Exhibit D” and incorporated herein by reference. 8. On December 28, 2010, the Department issued a 3rd Amended Order of Penalty Assessment to Wine Warehouse of St. Petersburg, Inc. The 3rd Amended Order of Penalty Assessment assessed a total penalty of $10,037.97 against Wine Warehouse of St. Petersburg, Inc. 9. On December 28, 2010, after receiving written notification from Wine Warehouse of St. Petersburg, Inc. that it did not wish to proceed to an administrative hearing in this matter, the Department filed a Joint Motion to Relinquish Jurisdiction in DOAH Case No. 10-6375. As a result, Administrative Law Judge B. J. Staros entered an Order Closing File, relinquishing Jurisdiction of this matter to the Department. A copy of the Order Closing File is attached hereto as “Exhibit E”, 10. OnJanuary 13, 2011, the Department and Wine Warehouse of St. Petersburg, Inc. entered into a Settlement Agreement wherein Wine Warehouse of St. Petersburg, Inc. agreed to pay the Department the penalty assessed in the 3rd Amended Order of Penalty Assessment in the amount of $10,037.97. 11. On January 27, 2011, the 3rd Amended Order of Penalty Assessment was served by certified mail on Wine Warehouse of St. Petersburg, Inc. The 3rd Amended Order of Penalty Assessment included a Notice of Rights wherein Wine Warehouse of St. Petersburg, Inc. was advised that any request for an administrative proceeding to challenge or contest the 3rd Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the 3rd Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28-106.2015, Florida Administrative Code. A copy of the 3rd Amended Order of Penalty Assessment is attached hereto as “Exhibit F” and incorporated herein by reference.
Conclusions THIS MATTER came before the Construction Industry Licensing Board (hereinafter referred to as the “Board”) pursuant to Sections 120.569 and 420.57(2), Florida Statutes, on April 10, 2008, in Indialantic, Florida, for consideration of the Administrative Complaint (attached hereto as Exhibit A), in the above styled case. Petitioner has filed a Motion for Final Order. Petitioner was represented by Jeff Kelly, Esquire. Respondent was present. Upon consideration, the Board FINDS: 1. The Petitioner’s Motion is granted. 2. The material facts are not in dispute. 3. The allegations of fact set forth in the Administrative Complaint are approved, adopted, and incorporated herein by reference as the Board's Findings of Fact. 4. The conclusions of law alleged and set forth in the Administrative Complaint are approved, adopted, and incorporated herein by reference as the conclusions of law of (A) Respondent is required to appear before the Probation Committee of the Board at such times as directed by the Board Office, approximately every six (6) months. Respondent's first probationary appearance requires a full day attendance at the Board meeting. In connection with each probation appearance, Respondent shall answer questions under oath. In addition, Respondent shall provide such other information or documentation as is requested by either the Petitioner, Department, the Board or the Probation Committee. Respondent shall forward said documentation to the Board:at least - 30 days in advance of the probation appearance or as otherwise directed. for 4 -(B) The burden shall be solely upon’ Respondent to remember the requirement for - said appearance and to take the necessary steps in advance of said appearance to contact the Board office and ascertain the specific time, date, and place of said appearance. Respondent shall not rely on notice of said appearance from the Board or the Department. (C) Should Respondent violate any condition of the probation, it shall be considered a violation of Section 489.129(1)(i), Florida Statutes, and shall result in further disciplinary action by the Board. (D) Should the Respondent fail to make a satisfactory appearance as determined by the Board, the term of the probationary period shall automatically be extended by six (6) months. If there occurs a second such failure then the term of probationary period will be extended an additional year. Should the Board determine a third failure of the Respondent to make a satisfactory appearance, the stay of suspension of the Respondent's license to practice contracting shall be lifted and the license shall remain in suspended status unless and until a further stay is granted by the Board. (E) Should Respondent's license to practice contracting be suspended or otherwise placed on inactive status, the probation period shall be tolled during the period of the suspension or inactivity and shall resume running at the time the suspension is stayed or Respondent reactivates the license and Respondent shall serve the time remaining on the term of probation. . (F) To ensure successful completion of probation, Respondent's license to practice contracting shall be suspended for the period of probation, with the suspension stayed for the period of:probation. ‘The time-of the suspension and ‘the stay shall run concurrently” ~~ --with the period of probation. If Respondent-successfully completes probation, the’ »- - suspension shall terminate.’ If Respondent fails to comply with the requirements set forth in the Final Order imposed in this ‘case, or fails to make satisfactory appearances as determined by the Board, the stay shall be lifted. Once the stay is lifted, the license shall remain in suspended status unless and until a further stay is granted by the Board. 5. In addition, Respondent shall complete seven (7) additional credit hours of continuing education which must be related specifically to Chapter 489 and related rules, within this renewal period. The seven (7) hours ordered shail be in addition to the continuing education required by Rule 61G4-18.001, F.A.C. Proof of the seven (7) additional hours must be supplied directly to Executive Director of the Construction Industry Licensing Board at 1940 N. Monroe Street MS# N14, Tallahassee, FL 32399-1039. Failure to provide such proof direct to the Executive Director will result in a violation of this Order. 6. Achangein licensure status, including the suspension, revocation, voluntary relinquishment, or involuntary relinquishment of license does not relieve Respondent of the obligation to pay any fines, costs, interest or restitution imposed in this Order. This Final Order shall become effective upon filing with the Clerk of the Department of Business and Professional Regulation. DONE AND ORDERED this O; day of oe , 2008. RAYMOND R. HOLLOWAY, Chair Construction Industry Licensing Board
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: As of the hearing date of March 15, 1982, the commission had not prepared subject-matter indices of its Orders entered after January 1, 1975 resulting from: petitions for rulemaking; hearings held pursuant to Section 120.57, Florida Statutes. determinations relating to presumptive and effective parole release dated (parole grants) or parole revocations; petitions for a declaratory statement issued prior to approximately July of 1981, or other final orders not otherwise defined. Other than as referred to in paragraph 2 of these Findings of Fact, the Commission has not produced indices of its current 1981 orders. (TR. 9) Neither the Commission's General Counsel nor the Planning and Evaluation Director, both of whom receive their assignments of duties and responsibilities from the Commission, have been directed by the Commission to prepare a subject- matter index of final Commission orders issued pursuant to hearings held under Section 120.57, Florida Statutes, or petitions for rulemaking. (TR. 34, 35, 37 & 104) The Commission's General Counsel and Planning and Evaluation Director would prepare such indices only if directed to do so by the Commission. (TR. 35 & 104) The General Counsel's office has been directed by the Commission to prepare an index of declaratory statements issued by the Commission. With the aid of an assistant counsel, the Commission's General Counsel has prepared a subject-matter index of declaratory statements purportedly issued as of September 30, 1981. (Appellant's Exhibit 3) This index utilizes key words or topics, without further citation to statutes or rules. It includes all declaratory statements issued by the Commission during the approximately ninety- day period prior to September 30, 1981. The General Counsel, who has been in that position since March of 1980, was aware of no other declaratory statements issued by the Commission or petitions for a declaratory statement submitted to the Commission. (TR. 108) A draft of an update to the subject-matter index for declaratory statements issued after September 30, 1981 has been prepared and was expected to be in final form within thirty days of March 15, 1982. The Office of General Counsel will prepare and produce an updated subject-matter index of declaratory statements on at least a quarterly basis. (TR. 101-103) As indicated by the opinions rendered in the case of Turner v. Florida Parole and Probation Commission, 379 So.2d 148 (Fla. 1st DCA, 1980) aff'd, 389 So.2d 1181 (Fla. 1980), and various issues of the Florida Administrative Weekly, 1/ petitions for a declaratory statement have been received and ruled upon by the Commission prior to July 1, 1981. As noted above, the witnesses presented by the Commission to testify in this proceeding had not been assigned the task of preparing subject-matter indices for orders on petitions for rulemaking, orders following hearings conducted pursuant to section 120.57, Florida Statutes, and other final agency decisions which are equivalent to "orders". Involved in the preparation such indices would be a review of the file and a development of a subject heading or headings for each such order. The Commission presented no further evidence regarding the practicability or cost of preparing such indices or any lack of public benefit to be derived from access to such indices. Absent such evidence, it is specifically found that it would not be impracticable, unduly time- consuming, or cost-prohibitive for the Commission to prepare or produce subject- matter indices of its Orders resulting from petitions for rulemaking, Section 120.57 hearings or other final agency decisions which are equivalent to "orders." Whatever inconvenience such indices cause the Commission in terms of time and costs of preparation are far outweighed by the public benefit to be derived from accessibility to the Commission's interpretations of the law and development of agency practice and incipient policy. The Commission has failed, without sufficient justification, to comply with the Court's mandate and Order dated September 3, 1981, to "forthwith prepare and report that it has prepared indices of its declaratory statements and of petitions to the Commission for rulemaking" and has further failed to comply with its own approved proposal to produce induced of current 1981 orders on or before November 30, 1981. Because of a change in the statutes effective January 1, 1979, with respect to the granting of parole and the establishment of presumptive and effective parole release dates, orders of the Commission entered prior to that date have no relationship to orders entered after that date. Therefore, the public would gain no present benefit from an index of parole granting orders entered prior to January 1, 1979. The appellant, Florida Institutional Legal Services, Inc. , has withdrawn its request to have the Commission index parole granting orders issued from January 1, 1975 through December 31, 1978. (TR. 12 & 13) As to the period between January 1, 1979 through December 31, 1980, it would be beneficial to the public to have access to an index of only those parole granting orders which contain a reference to a constitutional provision, statute or rule, since such orders may contain the agency's interpretation of the law or incipient policy. The parole revocation process has not changed since 1975. It would be beneficial to the public to have access to all those parole revocation orders of the Commission entered since 1975 which contain a reference to a constitutional provision, statute, or a rule. Jay D. Farris, the Commission's Planning and Evaluation Director, has been appointed by the Commission to be in charge of the indexing project as it relates to parole granting orders (which includes Commission determinations on presumptive and effective parole release dates) and parole revocation orders. This assignment is in addition to his other duties which include the drafting of all legislation for the Commission, lobbying, acting as a part-time clerk of the Commission, preparing complex case analysis for the Commission, the drafting of proposed rules, holding public hearings for proposed rules and training Commission hearing examiners when there are rule changes. Mr. Farris has only a secretary on his staff. (TR. 28, 29) Since the District Court entered its opinion on November 26, 1980 (petition for rehearing denied on January 8, 1981) reported at 391 So.2d 247, the Commission, through Mr. Farris, has conducted an investigation into the number of Commission actions which could possibly fall within the parameters of the Court's ruling regarding the prepartion of subject-matter indexing. It was determined that a minimum of 600 actions per week would fall under the purview of that decision. A private indexing firm would charge approximately $1.00 per action to review the data and produce an index. (Tr. 16) Determining that this cost would be prohibitive, Mr. Farris has been working with the Bureau of Management Information Systems (MIS) of the Department of corrections to prepare a computer program which would meet the Commission's indexing requirements. By statute, the department of Corrections maintains the sole offender-based information and records system for the joint use of the department of Corrections and the Commission. Section 20.315(20) Florida Statutes. The function of the Bureau of Management Information Systems of the Department of Corrections is the automation of departmental records for ease of retrieval and management information. To accomplish this function, the Department of Corrections shares a computer with the Supreme Court of Florida, with the Department owning 67 percent and the supreme Court owning 33 percent of the computer. The computer itself is located in the basement of the Supreme Court, but the Department of Corrections has approximately 40 terminals located in its headquarters in Tallahassee and in excess of 100 terminals located throughout the State. The computer maintains a complete offender record of each Florida inmate. This record includes the inmate's date of birth, race, sex, the offense for which he or she is incarcerated, other offenses, gain time accrued, presumptive, projected and current release dates and FDLE and FBI numbers. Without the prior preparation of a specific program by the Bureau of MIS, it is not possible to retrieve from the computer any generic information on Florida inmates. For example, while the computer presently has the ability to produce a screen view of the record of any particular inmate, it cannot search through its entire data base and produce screen printouts of the names of all those inmates meeting any particular criteria, such as those serving a mandatory 25-year capital life sentence. (TR. 91-94) The records of 53,700 offenders are presently contained in the computer's data base, with some 24,000 records being for active inmates. (TR. 93) In December of 1981, the Commission, through Mr. Farris, entered into discussions with Reynold L. Ferrari, the Chief of the Bureau of MIS for the Department of Corrections, and his staff regarding the subject of utilizing the computer system to produce and maintain a subject-matter index for Commission orders concerning the granting and/or revocation of parole. A basic technical problem presently exists in the computer program utilized by the Department of Corrections. The computer is only designed to handle single actions taken by the Commission on any particular day. Often, multiple separate actions by the Commission are taken in one day on a particular inmate, and the present computer programming does not allow multiple entries at one point in time. This problem is one of systems design and involves more than reprogramming. It involves a definition of a new data base that will have to be created for the Commission, and then programming it to provide the input capability to add additional data and defining the output reports that are required. (TR. 90) Once a systems design is accomplished and all the relevant data is in the computer, it will take about three weeks or less to produce a program that would result in a printout format similar to that developed and utilized by the Commission in its declaratory statement index. (Appellant's Exhibit 3, TR. 79, 84, 85) The Commission has not specifically or formally requested the Department of Corrections to resolve the multiple-action problem. It has simply asked the Department to look into the problem and estimate the length of time it would take to accomplish certain results. (Appellee's Exhibit 2) Mr. Ferrari has informed the Commission that he would need an exact and specific definition of the output required by the Commission and would work with the Commission and its staff in achieving the desired goals. (Appellee's Exhibit 3, TR. 89, 90) The answer to how long it would take to redesign the system is dependent upon a detailed definition of the information needed by the Commission. (TR. 98) A detailed statement of what is required by the Commission has not been provided to the Bureau of MIS. (TR. 99) The only evidence adduced by the Commission as to its time frame for providing the format the Commission requires was the statement of Mr. Farris that "I would like to have had it done some time ago, but just as soon as I possibly can. This has received a great deal of priority, I must say." (TR. 72) The Commission did make a budget request for two new positions--a data entry operator and a clerk typist III--in order to comply with indexing requirements and to augment their data input ability. (TR. 74, Appellee's Exhibit 4) Presently, the only information being provided by the Comission to the computer data base is current, single Commission action regarding presumptive parole release dates (PPRD) and the inmate's next interview date. Included within the PPRD information presently being put into the computer is a code which makes reference to aggravating factors contained in the Commission's rules. (TR. 69, 70) Prior Commission's actions regarding PPRDs have not been put into the computer data base. The manner in which this information will be retrieved or the printout format has not been developed yet. (TR. 52, 53) It is expected that the format will be similar to that developed for the index of declaratory statements. (Appellant's Exhibit 3). The Commission has not requested the department of Corrections to produce any particular format for a subject-matter index of parole granting or parole revocation orders (TR. 53, 54) and no evidence was tendered as to when such a request would be made. Mr. Farris, the person responsible for such indices, could give no specific date for the production of such indices (TR. 38) While the Commission has not prepared a final proposed style of indexing for Commission actions regarding presumptive and effective parole release and parole revocations, it is expected that such indices would be broken down by topic similar to that prepared by the Commission for declaratory statements. It is not known whether such indices will include citations to constitutional provisions, statutes or rules. (TR. 64) According to Mr. Farris, "the specification of the nature of the index is yet to be determined." (TR. 66) RECOMMENDATIONS TO THE COURT The undersigned, as the appointed commissioner of the Court, has been charged with the responsibility to take evidence and report recommendations to the Court with respect to a determination of the following issues: The practicability of the Commission preparing indices of its orders entered from 1975 through 1980; and The reasonableness of the schedule proposed by the Commission in light of the proposed contents of the indices, the cost of preparation, and the public benefit to be gained therefrom. Prior to addressing those issues, it must first be noted that, with the exception of preparing a subject-matter index for a portion of its declaratory statements, the evidence adduced at the hearing illustrates that the Commission has made absolutely no effort to produce indices of its current 1981 orders. This action is contrary to the Court' s original mandate as well as Paragraphs 1 and 2 of the Court's Order entered on September 3, 1981. There has been absolutely no evidence adduced in the proceedings before the undersigned as to a legitimate reason or justification for such noncompliance with the Court's directives. Indeed, the evidence illustrates that the Commission has simply not directed its attention to this important matter. Any problems attendant to the computer system utilized by the Department of Corrections should have absolutely no effect upon the ability of the Commission to immediately prepare subject- matter indices for all its Orders resulting from petitions for a declaratory statement, hearings conducted pursuant to Section 120.57, Florida Statutes, petitions for rulemaking or other matters which result in the issuance of the functional equivalent of an "order" as it is defined in Section 120.52(9). Florida Statutes. Turning now to the issues addressed in Paragraph 3 of the Court's September 3, 1981 Order, it is concluded from the evidence adduced at the hearing that it would not be impracticable or cost-prohibitive for the Commission to immediately prepare indices, whether arranged by subject matter and/or citations to constitutional, statutory or regulatory provisions, for its Orders entered from 1975 through 1980 in those matters arising from: petitions for a declaratory statement, proceedings conducted pursuant to Section 120.57, Florida Statutes, petitions for rulemaking, and cases, such as the instant proceeding, which result in the functional equivalent of an "order" as defined in Section 120.52(9), Florida Statutes. The public benefit to be gained from such indices is obvious since such Orders are indicative of an agency's interpretation of the laws under which it operates and can indicate incipient agency policy as developed on a case-by-case basis. The Commission has made no good-faith effort or diligent attempt to comply with its own schedule for the accomplishment of the preparation of indices for the Orders listed above and neither the contents, costs, or practicability of preparing such indices justify the time frame proposed. With respect to the remaining Orders issued by the Commission between 1975 and 19890--those involving parole grants and parole revocations--it is concluded that an index of Orders on parole grants entered prior to 1979 would not be beneficial to the public due to the drastic change in the law which became effective on January 1, 1979. It is further concluded that only those post-1974 Orders concerning parole parole grants which contain a reference or citation to a constitutional, statutory or regulatory provision would contain information beneficial to the public. Therefore, an index limited to such Orders would satisfy the requirements of Section 120.53(2)(c), Florida Statutes. The Commission has failed to adduce evidence that the preparation of a subject-matter and/or citator index for its Orders entered after January 1, 1975 involving parole revocation and its Orders entered after January 1, 1979 involving parole grants would be either impracticable or cost-prohibitive. While the computer system will need to be redesigned to accomplish multiple- entries in cases where the Commission takes more than one action on the same date regarding a single inmate, it is possible to make this change. The Bureau of Management Information Systems stands ready and able to effectuate such a design change and is simply waiting for a specific and detailed definition of the information sought to be retrieved by the Commission. Again, from the evidence adduced at the hearing, it appears that the Commission has simply made no diligent or good-faith effort to determine the format of the required indices or the information it desires to accomplish the indexing task. In summary, it is concluded that the Commission, along with the joint assistance and efforts of the Department of Corrections, presently has or can quickly obtain the capability of preparing indices of all Orders entered from 1975 through the present date. The Commission presented no evidence that the preparation of such indices would be cost-prohibitive, or that, other than its lack of attention to the matter, the contents of the indices would make the task unduly time-consuming or would otherwise render the indexing requirement prohibitive. With the exception of pre-1979 parole granting Orders and Orders granting or revoking parole which contain no reference to a constitutional, statutory or regulatory provision, the public will benefit from an index of, and consequently access to, all Orders of the Commission. In order to accomplish the indexing task, the Commission need only render a determination of the format for each index and provide the staff to either review the files containing the Commission Orders or provide the necessary input to the computer system so that the required information can be retrieved from the computer. The evidence presented by the Commission illustrates that not only has the Commission failed to adhere to its own proposed schedule of compliance with the law, the schedule proposed is unreasonably lengthy in terms of the contents, cost and information presently available, as well as the public benefit to be derived from the production of the indices. Respectfully submitted and entered this 4th day of June, 1982, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 1982.
The Issue Whether Petitioner's application for licensure as a yacht salesperson should be granted.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Petitioner is a 47-year old resident of Hollywood, Florida. He is married and has a five-year old step-daughter. His wife's father is the minister of the First Methodist Church in Hollywood. Petitioner is an active member of his father-in-law's church. In recent years, he has volunteered a significant amount of his time to perform tasks on behalf of the church. Petitioner is now, and has been since June of 1997, employed as a salesperson by Rex Yacht Sales (Rex) in Fort Lauderdale. As a salesperson for Rex, he sells new boats and he also sells used boats that are 32 feet or less in length.3 Approximately, 75 percent of the sales he makes are of used boats. Petitioner specializes in the sale of sailboats. He possesses a considerable amount of knowledge concerning sailboats as a result of the years (since he was a young child) that he has devoted to sailing. Petitioner owned, lived aboard, and captained a sailboat named the "Wave Dancer" from 1975 until the late 1980's. He acquired the "Wave Dancer" in return for his participation in an illicit drug smuggling operation. In 1975, when he was still living in his hometown of Port Washington, New York, Petitioner was approached by a childhood friend, Dan Locastro. Locastro advised Petitioner that he (Locastro) and his associates wanted to buy a sailboat to use to transport marijuana from St. Thomas in the Virgin Islands to the New England coast. Locastro promised Petitioner that, if Petitioner were able locate a sailboat for them to purchase and if he thereafter successfully captained the newly purchased sailboat on its journey to and from the Virgin Islands, Petitioner could keep the sailboat. Approximately a month later, Petitioner notified Locastro that he had located a sailboat for Locastro and his associates. The sailboat was the "Wave Dancer." Locastro and his associates subsequently purchased the "Wave Dancer." They purchased the boat in the name of Richard Harrison. Following the purchase of the "Wave Dancer," Petitioner, accompanied by Locastro, sailed the boat to an island near St. Thomas. There, 500 pounds of marijuana were loaded onto the "Wave Dancer." Petitioner then sailed the boat to the New England coast, where he delivered the marijuana. Petitioner participated in this illicit smuggling operation because he wanted his own sailboat. He was neither arrested, nor charged, for having participated in this operation. As promised, Petitioner was allowed by Locastro and his associates to keep the "Wave Dancer" after the conclusion of operation. The boat was subsequently titled in Petitioner's name. For approximately 12 or 13 years, Petitioner (who was then single) lived in the Caribbean aboard the "Wave Dancer." He earned a living by taking tourists (usually one couple at a time) out in the water on his boat. In the late 1980's, Petitioner decided to return to the United States to live with and care for his parents, who, because of their advanced age, required his assistance. Before moving back to the United States, Petitioner put the "Wave Runner" up for sale. He was unsuccessful in his efforts to sell the boat. He discussed with a friend of his, Ken Fish, the possibility of Fish purchasing the boat for $50,000.00, but no sale was consummated. Petitioner was still the owner the "Wave Runner" when he flew to the United States and moved in with his parents (in their home). He left the "Wave Runner" behind in the Virgin Islands in the care of his friend Fish. Approximately nine months after he left the Virgin Islands, Petitioner received a telephone call from Fish, who indicated that he was having financial difficulty and that he wanted to use the "Wave Runner" in a "marijuana scheme." Approximately six months later, Fish again telephoned Petitioner. This time he told Petitioner that he wanted "to do a cocaine smuggling venture with [the "Wave Runner]." At first, Petitioner told Fish that he (Fish) was "out of his mind." Later during the conversation, however, Petitioner relented and agreed to allow Fish to use the "Wave Runner" in the proposed "cocaine smuggling venture." Petitioner gave his permission without receiving any promise from Fish that he (Petitioner) would receive anything in return. The "cocaine smuggling venture" was unsuccessful. The "Wave Runner" was seized by authorities in Martinique. In the spring of 1991, in United States District Court for the Southern District of Florida Case No. 91-349-CR- HIGHSMITH, Petitioner was criminally charged by the United States government for his role in the "cocaine smuggling venture" with conspiracy to import cocaine into the United States. Petitioner's role in the "cocaine smuggling venture" was limited to permitting Fish to use the "Wave Runner" to transport cocaine into the United States. After his arrest in May of 1991, Petitioner agreed to, and he subsequently did, cooperate with federal authorities by participating in federal undercover drug enforcement operations under the supervision of federal agents. At times during these operations, he was required to place himself in situations where his personal safety was compromised. In or around January of 1994, pursuant to a plea agreement, Petitioner entered a plea of guilty in United States District Court for the Southern District of Florida Case No. 91- 349-CR-HIGHSMITH to one count of conspiracy to import cocaine. On January 30, 1995, Petitioner was adjudicated guilty of said crime and, as punishment, placed on probation for five years and fined $17,500.00. Such punishment constituted a substantial downward departure from the range provided in the United States Sentencing Guidelines. At the sentencing hearing, the sentencing judge explained that he was "constrained to substantially modify the sentence in this case downward" because of the risks Petitioner had taken to assist federal authorities in their drug-fighting efforts. Although under no legal obligation to do so, Petitioner continued to provide similar assistance to federal authorities (at a substantial personal risk) after his sentencing. In September of 1996, Petitioner filed with the Department an application for licensure as a yacht salesperson. Question 13 on the application form read as follows: CRIMINAL HISTORY: Have you ever been convicted of a crime, either pled or been found guilty, or entered a plea of nolo contendre (no contest), even if adjudication was withheld? NOTE: This question applies to any violation of the law of any municipality, county, state, or nation, including traffic offenses (but not parking, speeding, inspection or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. Your answer to this question will be checked against local and state records. Failure to answer this question accurately could cause denial of licensure. Yes No The application form instructed those applicants whose answer to Question 13 was "Yes" to "attach [their] complete signed statement of the charges and facts, together with the dates, name and location of the court in which the proceedings were held or [were] pending." On the application form that he submitted to the Department, Petitioner answered "Yes" to Question 13, but he did not attach the required signed statement. He merely appended to the application form a copy of the judgment entered in United States District Court for the Southern District of Florida Case No. 91-349-CR-HIGHSMITH. On or about October 1, 1996, the Department sent the following letter to Petitioner: The Department of Business and Professional Regulation, Section of General Regulation is in receipt of your application for a yacht Salesman. A review of your application has disclosed the following deficiencies: You answered Yes to question 13 which asked "Have you been convicted of a crime, either pled or been found guilty, or entered a plea of nolo contendre (no contest), even if adjudication was withheld?" The paragraph under question 15 further states "If your answer to question 13, 14, 15 is Yes, attach your complete signed statement of the charges and facts, together with the dates, name and location of the court in which the proceedings were held or are pending." You will need to submit a signed statement of the charges and facts, within twenty-one (21) days to this office before your application can be checked for form. Should you have any questions, please contact me. After receiving the Department's October 1, 1996, letter, Petitioner telephonically requested additional time to respond. By letter dated December 13, 1996, Petitioner's attorney, John J. Lynch, Esquire, responded on Petitioner's behalf to the Department's October 1, 1996, letter. Lynch's letter, which was received by the Department on December 17, 1996, read as follows: I represent the Applicant, Richard E. Parker. In response to concerns raised by Richard Parker's application's disclosure of charges and crimes and the results thereof, please consider the following as part of the application process: The subject matter was limited to involvement in a conspiracy to import controlled substances. Mr. Parker voluntarily entered a guilty plea in the U.S. District Court, Southern District of Florida, Miami, Florida, in an action entitled, "United States v. Richard Parker" Criminal No. 91-349-CR- Highsmith. Upon being aware of potential liability, he cooperated fully with the U.S. Government. During a four-year period, he provided extensive assistance to the U.S. Government in ongoing investigations and provided training and resources to special agents. Mr. Parker's participation as a Government agent put him at considerable risk. His case remains under court seal to protect information which may be used by the Government in future criminal prosecutions. I cannot provide a complete transcript of the court proceedings without jeopardizing Mr. Parker's safety. To appreciate Mr. Parker's significant assistance to the U.S. Government, a portion of the Honorable Judge Highsmith's sentencing comments has been enclosed. Pages 11, 12, 14 and 15 of the sentencing memorandum specify the efforts made by Mr. Parker, and recognized by the Court to rectify his prior conduct. (Note: All individuals, other than Mr. Parker, have been redacted to preserve a measure of safety since the matter remains under court seal). In recognition of [his] assistance, Mr. Parker was placed on probation for five years and fined on January 30, 1995. The fine was paid and probation has commenced. I trust this supplemental response answers concerns regarding this unfortunate episode in Mr. Parker's life. As his attorney asserted in the foregoing letter, as of the date of the letter, Petitioner had paid the $17,500.00 fine imposed in United States District Court for the Southern District of Florida Case No. 91-349-CR-HIGHSMITH. On January 17, 1997, the Department issued its Notice of Intent to deny Petitioner's application for licensure. On February 12, 1997, Petitioner requested a Section 120.57(1) hearing on the matter. On August 12, 1997, Petitioner filed a motion in United States District Court for the Southern District of Florida Case No. 91-349-CR-HIGHSMITH requesting that "his period of probation [be reduced] from a term of 60 months to a term of 32 months thereby terminating his probation on September 30, 1997." In support of his motion, he stated the following: On January 30, 1995, Richard Parker was sentenced by this Court to five years probation for his participation in a cocaine conspiracy. The Court imposed this lenient sentence because of the extraordinary cooperation Richard Parker had rendered (a transcript of the sentencing is attached hereto as Exhibit A). As part of his cooperation Parker had gone to Columbia in a sailboat, at great personal risk and with no protection from law enforcement, and developed a case involving significant arrests, convictions, and seizure of cocaine. Since sentencing Parker has remarried and complied with all terms of probation. Parker had promised the agents and the Court that his cooperation would continue regardless of the sentence imposed by the Court. True to his word, following sentencing, at the request of the DEA, Richard Parker traveled alone to Columbia and negotiated the location in the Caribbean Sea for an air drop of 300 kilos of cocaine. Parker then captained a sailboat and traveled to Dominica and Barbados, St. Kitts and the British Virgin Islands with DEA agents on board and participated in the recovery of the 300 kilos of cocaine as it was dropped from a plane in 50 kilogram packages. Parker received no payment for this cooperation. Parker rendered substantial assistance to the Government after sentencing because of his moral commitment to cooperation as a form of restitution, because of his sense of obligation and gratitude, and because he had given his word to the Government and this Court. It is now over 2 1/2 years since Parker was sentenced. Parker has complied fully with all conditions of probation. Parker has committed himself to building a productive law-abiding life. The Count may well recall that Parker's marriage ended during his cooperation and sentence. Parker has recently married again becoming the father of a four-year old in the process. Parker has spent his life working on and sailing boats. Parker has applied to the State of Florida for a license to be a yacht salesman. The issuance of these licenses in Florida is regulated by the Department of Business and Professional Regulation (DBPR). The DBPR has denied Parker's request for a license citing Parker's conviction as irrefutable proof of moral turpitude as a basis for denial. Parker has petitioned for review and a hearing before an administrative law judge is scheduled for October 14, 1997. Undersigned counsel has been advised that the hearing scheduled for October 14, 1997, will be the final hearing regarding Parker's petition for a license to sell boats in the State of Florida. Regarding this issue, undersigned counsel has become aware of an administrative decision where an application for a license as a yacht and ship salesman was granted by DBPR to an applicant who had been convicted of a drug felony, sentenced to probation and had been terminated from probation. Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes v. Orr, Docket No. YS95025 (Final Order No. BPR-95-03991, 7/20/95). It is respectfully submitted that evidence of successful completion of probation by Parker prior to the time of final hearing on October 14, 1997, will either result in the DBPR rescinding their denial of Parker's application or a reversal of DBPR's denial by the administrative law judge. Assistant United States Attorney John Schlessinger has conferred with the United States Probation Officer Anthony Gagliardi regarding this motion and has authorized undersigned counsel to state that the United States has no objection to a reduction of probation from 60 months to 36 months. Richard Parker has applied to the State of Florida for a yacht salesman license so that he can support himself and his family. Richard Parker, through his cooperation, has rebutted any presumption of moral turpitude that attached to his conviction and has affirmatively and courageously demonstrated good moral character; Richard Parker has honored and will continue to honor his pledge to the United States and to this Honorable Court never to break the law again. . . . The Final Order in the Orr case, which was referenced in Petitioner's Motion to Modify Probation, contained the following "findings of fact" and "conclusions of law":
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order granting Petitioner's application for licensure as a yacht salesperson. DONE AND ENTERED this 9th day of December, 1997, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 1997.
The Issue The issue in this case is whether to grant the petition challenging the validity of Florida Administrative Code Rule 33-302.111(2).
Findings Of Fact At the time of the final hearing, Petitioner was on probation and under the supervision of the Department of Corrections. Petitioner obtained a form pro se motion for early termination of probation from the Leon County circuit court clerk's office. The form contained fields for Petitioner's probation officer and the assistant state attorney to object or not object to early termination and to comment. Petitioner presented the form to his probation officer, who had her supervisor fill in the probation officer's field. The supervisor indicated neither an objection nor lack of objection. She commented that she was leaving it to the court to determine if Petitioner had met the vehicle impoundment condition of his probation, but that Petitioner had met all other requirements to be considered for early termination of probation. A hearing was scheduled on Petitioner's motion in June 2013. The judge notified the assistant state attorney assigned to the case and asked her to appear at the hearing. At the hearing, the assistant state attorney objected to early termination of Petitioner's probation. At some point in time, the assistant state attorney also checked the field on the form motion indicating her objection to early termination. The judge denied the motion. Petitioner blames the denial of his motion on subsection (2) of rule 33-302.111, which states: Before a correctional probation officer considers recommending an offender for early termination of supervision, the following criteria shall be met: Completion of one-half of the supervision period; Payment in full of restitution, fines, and court costs; Cost of supervision is current; All special conditions of supervision are fulfilled; A Florida Crime Information Center/National Crime Information Center (FCIC/NCIC) records check reveals no new arrest during the course of supervision of which the sentencing or releasing authority has not been previously notified; and No violations of supervision are pending. In order for an officer to request an early termination of supervision from the sentencing or releasing authority, approval must be obtained from the officer's supervisor, the State Attorney's Office, and the victim, if the offense involved a victim. If the State Attorney's office denies the request, or the victim opposes the early termination, the department will not proceed with the early termination recommendation. The officer shall not disclose a victim's objection to the offender. The officer shall notify the offender of the judge's decision upon receipt of the judge's response. If the offender was adjudicated guilty, the officer shall review the restoration of civil rights process with the offender. He contends that subsection (2) of the rule is an invalid exercise of delegated legislative authority because it exceeds the statutory grant of rulemaking authority and enlarges, modifies, or contravenes the specific provisions of law implemented. See § 120.52(8)(b) & (c), Fla. Stat. (2013). Specifically, Petitioner contrasts the rule with section 948.04(3), Florida Statutes, which states: If the probationer has performed satisfactorily, has not been found in violation of any terms or conditions of supervision, and has met all financial sanctions imposed by the court, including, but not limited to, fines, court costs, and restitution, the Department of Corrections may recommend early termination of probation to the court at any time before the scheduled termination date. Although on the precise subject as the rule, section 948.03(4) is not cited in the rule as either the rulemaking authority or the law implemented. Instead, the rule cites section 944.09, Florida Statutes, for both.
Findings Of Fact 1. The Administrative Law Judge’s Findings of Fact are hereby approved and adopted and incorporated herein by reference. 2. There is clear and convincing evidence to support the Administrative Law Judge’s Findings of Fact.
The Issue The issue to be determined is whether Respondent violated section 458.331(1)(b) and (kk), Florida Statutes (2010), and if so, what penalty should be imposed for the violations proven.
Findings Of Fact Petitioner is the state agency charged with the licensing and regulation of medical doctors pursuant to section 20.43 and chapters 456 and 458, Florida Statutes. At all times material to the Amended Administrative Complaint, Respondent has been licensed as a medical doctor in the State of Florida, having been issued license number ME94098. During all times relevant to the Amended Administrative Complaint, Respondent also held a license to practice medicine in the State of California. On September 7, 2010, Linda Whitney, the Executive Director of the California Board of Medicine, filed an Ex Parte Petition for Interim Suspension Order (Ex Parte Petition) in Case No. 06-2007-187158, seeking to suspend, pending a full hearing on the merits, Respondent’s physician’s and surgeon’s certificate in the State of California. On September 9, 2010, Administrative Law Judge Samuel Reyes of the California Office of Administrative Hearings entered an Ex Parte Interim Suspension Order, stating that the Ex Parte Petition had come up for hearing, with both the Executive Director (through counsel) and Dr. Fenton appearing and submitting documents and presenting argument. Judge Reyes granted the Ex Parte Petition; suspended Respondent’s California Physician’s and Surgeon’s certificate; scheduled a hearing on September 30, 2010; and set a deadline for submitting additional affidavits and other documents. After the hearing on September 30, 2010, Judge Reyes entered an Interim Suspension Order, containing findings of fact and conclusions of law. The Interim Suspension Order indicates that it was entered pursuant to California Government Code section 11529, which, as stated in the Interim Suspension Order, authorizes licensure suspension and the imposition of other conditions pending a resolution of underlying disciplinary allegations. Subdivision (a) of the statute provides that: “[i]nterim orders may be issued only if the affidavits in support of the petition show that the licensee has engaged in, or is about to engage in, acts or omissions constituting a violation of the Medical Practice Act . . . and that permitting the licensee to continue to engage in the profession for which the license was issued will endanger the public health, safety, or welfare.” Subdivision provides: “[t]he administrative law judge shall grant the interim order where, in the exercise of discretion, the administrative law judge concludes that There is a reasonable probability that the petitioner will prevail in the underlying action. (2) The likelihood of injury to the public in not issuing the order outweighs the likelihood of injury to the licensee in issuing the order.” The Interim Suspension Order granted the Petition and suspended Respondent’s license in accordance with Government Code section 11529. On May 8, 2012, the Medical Board of California adopted a Stipulated Settlement and Disciplinary Order as the Decision and Order of the Medical Board of California (Board Order), effective June 7, 2012. The Stipulated Settlement and Disciplinary Order, which was signed by Dr. Fenton, states in pertinent part: Respondent does not contest that, at an administrative hearing, complainant could establish a prima facie case with respect to the charges and allegations contained in SAA No. 06-2007-187158, and that he has thereby subjected his license to the disciplinary action. Respondent admits the truth of paragraph 31C. in SAA No. 06-2007-187158. SSA No. 06-2007-187158 refers to the Second Amended Accusation, which is the charging document in the underlying California case, akin to an administrative complaint in Florida. The SAA alleges that Respondent is subject to discipline based upon impairment because of physical or mental illness affecting competency in violation of the California Business Code, section 822; conviction of a crime substantially related to the qualifications, functions, and duties of the medical profession in violation of section 2236; and general unprofessional conduct, in violation of section 2234. The Board Order revoked Respondent’s Physician’s and Surgeon’s Certificate. The revocation was stayed, however, and Respondent was placed on probation for a period of seven years, subject to terms and conditions outlined in the Board Order. Those terms and conditions included abstinence from the use of any controlled substances and any drugs requiring a prescription other than those lawfully prescribed by another practitioner; abstinence from alcohol use; biological fluid testing; completion of a professionalism program; submission to a psychiatric evaluation; psychotherapy by a California-licensed, board-certified psychiatrist or licensed psychologist; monitoring of Respondent’s practice while on probation; and a prohibition against supervising physician assistants during the course of probation. Respondent did not report the Interim Suspension Order dated September 9, 2010, to the Florida Board of Medicine within 30 days of the Interim Suspension Order. Respondent also did not update his practitioner profile to include the discipline in the State of California. The Board received notice from the State Federation of Medical Boards that another state had taken action, i.e., that the Interim Suspension Order had been issued by the State of California. There is no allegation, nor was any evidence presented, that Respondent has violated the terms of the Board Order entered in California. No evidence was presented indicating that Respondent has ever been disciplined previously, in Florida or in California. At the time of the hearing, Respondent was not practicing medicine. He testified at hearing that he has enrolled voluntarily in the Florida Physicians’ Resource Network (PRN). However, no contract with PRN was entered into evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Board of Medicine enter a Final Order finding that Respondent violated subsections 458.331(1)(b) and (kk), Florida Statutes, as charged in the Amended Administrative Complaint. It is further recommended that Respondent’s license in Florida be suspended until such time as Respondent demonstrates the ability to practice medicine with reasonable skill and safety, followed by probation with such terms as the Board deems appropriate. Respondent’s demonstration of the ability to practice with reasonable skill and safety shall include an evaluation by a board-certified psychiatrist approved by PRN and compliance with any recommendations PRN may make as a result of that evaluation. DONE AND ENTERED this 29th day of July, 2013, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 2013.
